PANKAJ MUKHERJEE,DURGAPUR vs. D.C.I.T., CIRCLE - 1, , DURGAPUR

At the outset, we note that there is a delay in filing the appeal by 278 days, for which the assessee has filed an affidavit of Shri Amit Kumar son of Sri Balmukund Pathak stating that he was looking after the tax matters of Pankaj Mukherjee. He further stated that he was handed over the copy of the appellate order for the A.Y. 2010-11 on 25.02.204 for filing the appeal. However, the same was misplaced by him as it was placed in the wrong file. On 25.10.2024, the assessee asked the said counsel about the status of the appeal and then he

The ld. DR on the other hands strongly opposed the condonation of delay.

After hearing the rival contentions and perusing the materials available on record, we find that the appeal filed by the assessee was late by 278 days which appears to be for genuine and sufficient reasons. Therefore, the same is condoned and appeal is admitted for adjudication.

The only issue raised by the assessee is against the order of ld. CIT (A) upholding the reopening of assessment when the necessary conditions as specified u/s 147, were not satisfied.

The facts in brief are that the assessee filed the return of income on 29.03.2011 declaring total income of ₹13,06,876/-. The case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 31.03.2017. The case was reopened after recording the reasons to belief and after obtaining the approval of the competent authority. As per the reasons recorded, the assessee has received interest of ₹13,935/- on which TDS of ₹3394/- was deducted, whereas the assessee has declared the income from interest as nil and also has not claimed any TDS deducted at source. Further, the reasons stated that as per AIR information, the assessee has deposited cash of ₹58,76,000/- in saving bank with Axis Bank Ltd. However, at schedule

In the appellate proceedings, the ld. CIT (A) deleted all the additions except the unsecured loan u/s 68 of the Act of ₹23,62,500/-. In other words, the ld. CIT (A) deleted the additions of disallowance u/s 40A(3) of the Act of ₹1,29,320/-, unexplained cash credit u/s 68 of the Act Rws. 16,98,126/- and advance against sale of land u/s 68 Rs. 57,59,481/-. Thus, the ld. CIT (A) deleted the addition which was subject matter of the reasons recorded.

Now, aggrieved assessee has challenged the reopening of assessment to be bad in law and invalid for the reason that the very basis for reopening has gone as the addition made by the ld. AO for the reasons recorded u/s 148(2) of the Act was fully deleted by the ld. CIT (A) and therefore, the reopening of assessment has to be go. We find “19. We have considered the submission of the learned counsel for the Assessee in the light of the judgment of the Hon’ble Bombay in the case of Jet Airways (I) Ltd. (Supra). We are of the view that on the facts and in the circumstances of the present case the ratio laid down by the Hon’ble Bombay High Court in the case of Jet Airways India Ltd. (supra)is squarely applicable. As we have already seen that the assessment was reopened for the reason that the jewellery purchased by the Assessee was from undisclosed sources and the purchases were bogus. That addition has not been sustained now. The Assessing Officer however, proceeded to make an addition on account of Long Term Capital Gain (LTCG) on sale of shares. This was clearly beyond the scope of the proceedings under section 148 of the Act. The Assessing Officer, therefore, could not have proceeded to make the impugned addition of bogus LTCG. Similar view has been expressed by the Hon’ble Delhi High Court in the case of Ranbaxy Laboratories vs. CIT, ITA 148 of 2008 dated 3/6/2011. The Hon’ble Delhi High Court followed the decision of the Hon’ble Bombay High Court in the case of Jet Airways (supra). In that view of the matter we hold that the addition by treating the LTCG as bogus cannot be sustained as it was beyond the scope of the proceedings under section 147 of the Act. We therefore delete the said addition also and allow Ground No..6 to 8. . 20.. In view of the above conclusions we are of the view that the issue with regard to the validity of initiation of re-assessment proceedings u/s 147 of the Act does not require any consideration.

In the result, the appeal is allowed.”

Similarly, in case of Ganesh Steel & Alloys Ltd. Vs. DCIT in for A.Y. 2012-13 vide order dated 11.06.2024, wherein the coordinate bench has decided the case in favour of the assessee. We therefore, respectfully following the co-ordinate Bench decision direct the ld. AO to delete the addition as beyond the scope of the proceeding u/s 147 of the Act. The appeal of the assessee is allowed.

In the result, the appeal of the assessee is allowed.